AGENTES DEL SISTEMA REGIONAL DE INNOVACIÓN

With the new remedies amendment in Directive 2007/66, the private enforcement of public procurement rules was greatly strengthened. The amendment is entitled “with regard to improving the effectiveness of review procedures concerning the award of public contracts”. The main thrust of the changes is clear. The review mechanisms which had been established were perceived as weak, specifically as regards the possibility of aggrieved tenderers challenging direct illegal awards of contract, also called de facto tendering, by which a contracting authority awards a public contract without opening the contract to public tender at all. Another weakness was that the lack of time allowed for an effective review between the decision being made to award a contract and the conclusion of the contract in question.53

50 _{Impact Assessment Report on Remedies, 12.} 51 _{Impact Assessment Report on Remedies, 21.}

52 _{For example, J. M. HEBLY, E. T. DE BOER & F. G. WILMAN, Rechtsbescherming bij aanbesteding (Uitgeverij}

Paris, 2007).

53 _{Compare recital 3 of the preamble to Directive 2007/66/EC, “Consultations of the interested parties and the}

case law of the Court of Justice have revealed a certain number of weaknesses in the review mechanisms in the Member States. As a result of these weaknesses, the mechanisms established by Directives 89/665/EEC and 92/13/EEC do not always make it possible to ensure compliance with Community law, especially at a time when infringements can still be corrected. Consequently, the guarantees of transparency and non-discrimination sought by those Directives should be strengthened to ensure that the Community as a whole fully benefit from the positive effects of the modernisation and simplification of the rules on public procurement achieved by Directives 2004/18/EC and 2004/17/EC. ”

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The Commission made a policy choice, based on the consideration that “among the two types of Remedies [pre- and post-contractual], pre-contractual remedies are the more effective remedies in the context of public procurement”.54 _{This policy consideration}

translated into a significant modification of the initial remedies directives targeting pre- contractual remedies and the specific post-contractual remedy of ineffectiveness. This left the existing damages provisions as they were: minimal.

Through the amendment, the post-contractual position of tenderers was improved by time limits for review procedures and standstill provisions. Also, specific violations such as de

facto tendering now entail the post-contractual remedy of ineffectiveness of already

concluded contracts. This solution addressed the so-called ‘race to contract’55 _{which was}

sanctioned by the Remedies directive prior to the amendment.56 _{However, for violations}

other than de facto tenders, the post-contractual remedy of ineffectiveness is not required. The only other post-contractual remedy remains a damages action. In addition, the remedy of ineffectiveness may be waived in the public interest, thus potentially leaving an aggrieved tenderer with nothing but an action for damages. Damages actions therefore remain an important component of the private enforcement of EU public procurement law.

Significantly, the amendments made by Directive 2007/66/EC did not directly alter the damages provision in any way. As is apparent from the legislative history, this was a conscious decision, and while damages claims were identified as a problematic area, the Commission decided not to include damages in the final proposal. However, the fact that the wording on damages has not changed does not mean that Directive 2007/66 has no significance for the interpretation of damages claims: first of all, it is an expression of the legislator’s will. Damages were regarded as being too problematic and potentially beyond competence to legislate. On one hand, this provides some recognition on the part of the

54 _{Impact Assessment Report on Remedies, 23.}

55 _{Since concluded contracts could not be undone, there was a practice of signing illegally tendered contracts as}

quickly as possible, as in many legal orders the contracts could not then be undone, and an aggrieved tenderer would be left with only a damages claim.

56 _{Article 2(6) of Directive 89/665 (repealed) stated, “[f]urthermore, except where a decision must be set aside}

prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.”

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legislator that damages claims are problematic. On the other hand, a conscious choice was made not to legislate. This omission could also be interpreted as due to a perceived lack of political will, competence or need. In addition, damages as a remedy must be seen in the context of their interrelationship with other remedies. The fact that alternative remedies have changed means that damages claims must be reassessed in terms of their overall balance relative to other (newly available) remedies.

The amendment strengthens the existing Remedies Directives in relation to what had been perceived as weaknesses in the review mechanisms of the Member States, mechanisms which in turn ensure the proper application of the substantive Remedies Directives. For a large part, this constitutes a codification of the ECJ case law rendered, for example, regarding the minimum standstill period. The new Remedies Directive is an excellent example of the kind of dialogue taking place between the European legislator and the judiciary, and also an excellent example of the way in which EU law ‘evolves’57 _through

dynamic interpretation of existing legislation and subsequent codification which in turn engages new preliminary reference procedures demanding the interpretation thereof. The Remedies Directive is both, codification and clarification: first, a dimension of codification – the Alcatel jurisprudence58 _{is codified very clearly with regard to time limits. Also, regarding}

the “most serious breach of Community law in the field of public procurement”,59 _the

Brunswick Waste Disposal case law60 _{has been processed in the Directive. However, the}

57 _{Without entering into the intricacies of evolution in biology, the factors triggering evolution include}

recombination, mutation, selection, and drifting of genes (basically a shift of genes due to chance).

58 _{Case C-81/98 Alcatel Austria and others [1999] ECR I-7671 and Case C-212/02 Commission / Austria,}

unpublished.

59 _{Recital 13 of Directive 2007/66.}

60 _{In the first case of the Commission against Germany, the Commission brought infringement proceedings}

under Article 226EC against Germany, namely the municipality of Bockhorn for failure to tender, as well as the city of Brunswick for illegally using the privately negotiated procedure in contracting out the collection of waste water. The ECJ found that Germany had failed to fulfill its obligations under the respective public procurement provisions. Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I-03609. In the follow up case, the Commission brought renewed action against Germany for failure to comply with the judgment rendered in 2003 which, since the Bockhorn contract had been annulled in the meantime, concerned only the waste disposal contract of the city of Brunswick. The contract concluded between Brunswick and Braunschweiger Kohlebergwerke remained in question, although at the time of judgment this was also rescinded, but only after the date of expiry of the period prescribed in the reasoned opinion. An important factor was that it was concluded for a period of 30 years. Case C-503/04 Commission v Germany [2007] ECR I-06153.

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Directive goes further than mere codification, it is also reactionary and clarificatory to the rendered case law: issues such as the confusion over whether Brunswick Waste Disposal required ex-nunc or ex-tunc termination were picked up and somewhat clarified. One may also wonder whether the legislator stepped in with the purpose of limiting a broad interpretation by the CJEU.